Deliquency on taxes not enough to get booted from office

Former Bartlett Mayor Michael Kelly likely would have survived a legal challenge to his office despite habitual delinquency on his taxes, according to several prominent election attorneys.

Burt Odelson, an Evergreen Park lawyer who spearheaded the residency challenge to keep Chicago Mayor Rahm Emanuel off the ballot, said he believed Kelly protected himself when he paid his debt in full earlier this month.

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Bartlett trustees voted Tuesday to hire a special counsel to explore whether the board had a legal obligation to address Kelly's late payments on both his law office and home. He most recently owed nearly $26,000 on his 2010 taxes, but paid in full about five hours after the Daily Herald asked him about it.

However, Kelly abruptly resigned his office the day after the village board meeting. In his resignation letter, he anticipated a protracted legal battle.

"I will neither facilitate nor participate in a distracting and expensive political battle with those members of the board who oppose my term of office," he wrote. "Though my sense of justice urges me to vindicate the truth and defend the rule of law, it is clear that a majority of trustees intend to lay the cost of that vindication at the taxpayers' feet. This I cannot abide."

Kelly did not return calls for this story.

A state election board spokesman said if someone had used Kelly's delinquent taxes to challenge his candidacy before the April 2009 election, he likely would have been removed from the ballot.

According to the Cook County Treasurer's office, the first installment of Kelly's 2008 property taxes was due March 3, 2009 -- about a month before the mayoral election -- but that he didn't pay the residential bill until May 2009 and the law office bill until August 2010.

A state appellate court earlier this year ruled that Carmelita Earls, a candidate for Chicago's 28th Ward, was ineligible to run for elective municipal office because she was in arrears on her property taxes to the city during her candidacy.

But unlike Earls, no one challenged Kelly's candidacy and the window of opportunity to question his eligibility closed when he was elected, according to election law.

"The absence of an objection to the person's candidacy means they're considered a qualified candidate," Illinois State Board of Elections Assistant Executive Director Jim Tenuto said.

The one exception is a legal tool known as quo warranto, which challenges an individual's right to hold an office or governmental privilege.

Keri-Lyn Krafthefer, a municipal and election attorney at Ancel Glink, said an example would be if someone discovered an elected judge wasn't a lawyer, or if a prior felony for someone holding office was uncovered.

Krafthefer said a court would have to weigh the extent of the violation to decide whether quo warranto could be applied.

But she believes going to the courts in a case like Kelly's would be fruitless.

"Right now there are a lot of public officials who are suffering the challenging consequences of economic times, and if anyone who ever missed a water bill could be removed, we could have great turmoil in this state," Krafthefer said. "Because he corrected the delinquency, I don't believe anyone would have the energy to pursue that."

In 2009, the chairman of the Kane County Board finance committee, Cathy Hurlbut, was delinquent on the property taxes for her law office building in Elgin. She paid the bill in full, plus fines, but in 2010 state Sen. Chris Lauzen of Aurora began pushing a new law that would render anyone "in arrears in the payment of a tax or other indebtedness due to a county" ineligible to serve on any county board or commission. Hurlbut is still a Kane County Board member and is presently running for Kane County clerk.

In his resignation, Kelly anticipated an "expensive political battle," but attorneys said someone in the Cook County state's attorney's office could probably have spent a day researching the issue and advised the trustees at no cost.

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